Australia, March 12 -- New South Wales Land and Environment Court issued text of the following judgement on Feb. 13:

1. The difficult case management issues thrown up by this List Statement amendment application show the unsatisfactory position that can result when an owners corporation of a large residential development in which defects emerge, hoping in due course to achieve a compromise with the builder, seeks to prove the existence of defects in a sample of units, without inspecting the remaining units, but adducing expert evidence that the observed defects are likely to be systemic. The problem arises if the owners corporation cannot settle with the builder and then adduces a further large body of evidence to prove that, in truth, the defects are systemic throughout the development and then seeks to amend its List Statement to reflect that quantitively vastly increased claim.

2. Here, the plaintiff is an Owners Corporation of a large development in St Ives known as "Alcove", comprising 299 residential units over six buildings and a former monastery on the site.

3. The defendants, Karimbla Construction Services Pty Ltd and Karimbla Construction Services (NSW) Pty Ltd, were the builders. They are members of the Meriton Group. I will refer to them as "the Builder".

4. This was a staged development with interim occupation certificates issued between December 2012 and July 2013.

5. The Owners Corporation alleges that there are structural, fire safety, waterproofing, mechanical, hydraulic and other defects in the building.

6. The Owners Corporation commenced these proceedings in August 2019 alleging breaches of the statutory warranties in s 18B of the Home Building Act 1989 (NSW).

7. Annexure A to its Technology and Construction List Statement was headed "Particulars of Breaches and Defective Work" and listed some 40 types of alleged defects. It also stated:

"Defects and non-complying work in the common property also include defects of the same type or kind as those particularized above occurring in locations in the common property other than those locations stated above."

8. The allegations in the body of the List Statement also included the statement, on a number of occasions:

"Further particulars of the breaches will be set out in the plaintiff's evidence and the Scott Schedule to be filed and served in these proceedings."

9. Between December 2020 and May 2021, the Owners Corporation served 13 expert reports.

10. It also served a Scott Schedule in May 2021. The Scott Schedule identified some 5,445 defects and identified many of those as being "systemic".

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1951244f745de693507294f1)

Disclaimer: Curated by HT Syndication.